Neskantaga First Nation is requesting mediation to resolve differences between the environmental assessment it wishes to see for Cliffs’ Ring of Fire mine, and the assessment process the company has proposed.

In a letter to Ontario’s Minister of Environment Jim Bradley dated Sept. 27, Neskantaga called on Bradley to refer Cliffs’ terms of reference to mediation.

“Our constitutionally protected aboriginal rights and title and treaty rights are not appropriately addressed in the terms of reference,” Neskantaga wrote. “Therefore, numerous fundamental issues of concern arise on the terms of reference as submitted. It is our strong view that these should be addressed in a mediation between Neskantaga and…Cliffs.”

Neskantaga’s legal council Greg McDade of Ratcliff and Co. LLP told Wawatay News that as of Oct. 19, the minister had not yet responded to the request. Under Ontario’s Environmental Assessment Act, the minister has the ability to refer a terms of reference to a mediator if requested.

McDade said the decisions made at this point of the environmental assessment will determine how much conflict comes later in the process.

“The terms of reference really sets the stage for the whole environmental review,” McDade said. “First Nations have sought a seat at the table, arguing that they should be part of the decision making process. Unless that gets set up now, this environmental assessment cannot possibly succeed.”

Alex Blasko, special projects officer with the Ministry of Environment’s Environmental Assessment and Approvals Branch, said the minister is “carefully reviewing the request before making a decision.”

Blasko said the minister will take into account a number of factors in his decision, including the willingness of parties to participate in a mediation process, if there have been other attempts to resolve the matter outside of mediation and if the issues involved are clearly defined and negotiable.

Blasko added that the ministry “encourages proponents to consider all methods of resolving disputes and addressing outstanding concerns.”

“Comprehensive consultation is vital to the environmental assessment process and proponents must fully consult with the public and First Nations communities during the planning and development of a project,” Blasko said.

Cliffs submitted the terms of reference to the Ontario government on July 27. First Nations and the public were given until Aug. 27 to provide comments on the document, although the comment period was extended until Sept. 25 at the request of First Nations.

Neskantaga submitted a number of concerns with the terms of reference, including concerns with the lack of “meaningful consultation with respect to their content and development.”

Under the act, the minister is supposed to make a decision whether to approve the terms of reference 12 weeks after it is submitted.

McDade said that if the minister decides to proceed with the terms of reference and ignore Neskantaga’s request for mediation, the First Nation could choose to challenge the decision in the courts.

Otherwise Neskantaga and other impacted First Nations could challenge the environmental assessment once it gets completed, but McDade said that option is not in anyone’s best interest.

Neskantaga is also part of Matawa First Nation’s judicial review of the federal government’s decision to hold a comprehensive environmental assessment for Cliffs’ Ring of Fire mine, rather than a Joint Review Panel as the First Nations desire.

Matawa’s judicial review was filed in Nov. 2011, but it may be a year or more before it makes its way to the courts.